It is a pleasure to follow the Front-Bench speakers in this short but important debate. I welcome the Government’s stance on presumption and their acceptance of the amendment made in the Lords. It is worth remembering that Lord Faulks, who chaired the independent review that gave rise to all these proposals, took the view that no harm was done by removing that presumption, and that thereafter the discretionary power to have a prospective-only order that can be considered by the courts if it meets the interests of justice was, as I think he put it, an extra club in the bag of the judiciary. That is the whole point of it: it extends the remedial powers available. At the end of the day the presumption was not perhaps necessary, and the Government have taken a sensible and pragmatic stance on that. The principle of having that extra flexibility in the remedy is not objectionable, and I am glad the Opposition have not opposed it.
Some of the other changes made by the Government in the Lords are welcome. The ability to make payment for pro bono representation in a number of cases is welcome, and I am glad the Government have moved in that direction. Practitioners and the judiciary alike will welcome the changes to make online procedure rules easier and swifter to deal with, so those are practical changes.
Two issues then remain, including Cart appeals and litigation. I must respectfully differ with the shadow Minister and their lordships on that, and it is perhaps worth quoting what Lord Faulks said about it in the other place—after all, he examined this issue with probably more care than anyone. His stance was that the independent review into administrative law
“came to the firm conclusion that Cart ought to go. It did so carefully considering the fact that Parliament should be slow before reversing decisions of the Supreme Court.”—[Official Report, House of Lords, 31 March 2022; Vol. 820, c. 1736.]
That was its view, having carefully considered the evidence, in adopting a cautious approach to such a change.
Cart was controversial at the time, and it remains controversial. Lord Carnwath, who has given evidence to the Justice Committee in the past, raised questions about the Cart appeal, with his specialist knowledge of the genesis of the upper tribunal. The general view of many is that, to quote a phrase used by Lord Hope in Committee, it was a “legal misstep”. There are, of course, a tiny number of successful cases, but those should be set against the very real burden that falls not on the Court of Appeal, where Lord Etherton— for whom I have great respect—served, but on the justice sitting in the Queen’s bench division. That is where the judicial pressure is, and we should look to remove something that many practitioners, and in private many members of the judiciary, regard as an unhelpful burden on them.
In immigration cases in particular, convention rights will be engaged, but they will have been engaged from the outset. By the time we get to the Cart appeal, they will have been argued and considered by the first-tier tribunal and by the upper tribunal which, as Lord Carnwath pointed out, was designed to be a superior court, and to have in effect the judicial weight and equivalence of the High Court. An anomaly arises from the Cart decision, and it is right and proportionate to remove it.
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Finally, having supported the Minister on all matters so far, I turn to Lords amendment 11, on legal aid at inquests, which is the one area where he knows that he and I will part company. I heard what he said about waiting to see what further consultations arise, but this has been a real and live issue for many years and the facts have been well ventilated. As he knows, I pray in aid the Justice Committee’s report, which took the view that there is an overwhelming equality of arms argument. This is a situation in which the state—or its agencies—is legally represented but the families bereaved, potentially through a failure or action of one of the state’s agencies, are not. That is not fair and, with respect, the Government spoil what is otherwise a good Bill by not taking that point on board.
The Association of Personal Injury Lawyers helpfully points out that, in reality, although inquests are strictly an inquisitorial process, they have evolved and are now, to a degree, more adversarial in nature. That is inevitable,
and sometimes it arises from the state agencies who are party to the proceedings and may be responsible for the deaths. Such inquests, which are a small minority of the total number of inquests but important for obvious reasons, particularly if there is a potential failing of a public body, need to be examined with particular care. However, without legal representation, the family of someone who has lost their life as a result of something that has gone wrong may have to plough through reams of volumes of documents, which is probably quite distressing for them. It does not seem right or fair that they should be expected to do that without legal support.
I grant that there has been some movement on the lifting of the means test for exceptional funding, but in any event families still need to meet a high bar—the article 2 bar—to get exceptional funding, and that will not work for the majority of these cases. Occasionally, families have to use conditional fee agreements, but again they usually work only if there is likely to be a money claim—a successful compensation claim—that sits alongside that. In many inquests, that will not be the case, but there is a public interest in the family having a chance to explore and probe what went on, and potentially what went wrong, in the hope that that might lead to changes in behaviour by the relevant body so that such a thing does not happen again.
I appreciate that the Government pray in aid costs, but I think they are small in the overall scheme of things. These are a small minority of inquests, but they are particularly sensitive. Hillsborough is the most obvious example, but there are others of a like kind. I would have thought that the amount of public money likely to be consumed is minimal set against the importance of the quality of arms argument, which I think we all regard as pretty fundamental to the fair working of the system.
I am sorry that the Government have not moved as far as they could, and I hope that the Minister will indeed pursue the consultations that are going on, but I do not think we need to wait for them, because the evidence is there. The Justice Committee’s report was strongly evidenced. Two chief coroners have supported the introduction of legal aid for this class of inquest and, if they do not know the reality of the situation, who on earth does? It is worth saying that, since the post was created, our series of chief coroners have done much to improve the consistency and standards of the coronial courts, but I regret to say that the Committee’s report found strong evidence of there still being instances of variability in the attitude of some coroners towards bereaved families and variability in those families’ ability to challenge some issues that arise. For that reason, it is important that they should have legal representation.
One can think of a case quoted to us in which a coroner had tried to close down a line of questioning that led to a successful threat of judicial review. The coroner rightly recused themselves, but if the lawyers had not been engaged in the case to begin with, that might not have happened, and there might well have been an injustice. That is why it is important to have lawyers involved in this limited number of cases. With respect, that is not likely to make the matter any more adversarial, and it may actually save time, because legal representation often cuts through things and gets to the issues more quickly than in cases where individuals are acting in person. Therefore, if the Government oppose Lords amendment 11, I am afraid that that is the one area where I will not be able to support them.